Vowing to take its fight to Parliament after Oct. 19, ForestEthics Advocacy slammed the Harper government’s reforms of the NEB Act as a violation of free speech, by barring scientific evidence of greenhouse gas emissions from hearings on Kinder Morgan's Trans Mountain Pipeline twinning proposal, limiting the participation of Burnaby residents living near the planned route, and accusing the oil industry of influencing the rules to their advantage by appointing Kinder Morgan’s Steven Kelly as a member.
“We are determined to continue in our efforts to ensure that the current NEB process be shelved so that we can develop fair and transparent processes that let us make real decisions together about Canada's future. Considering the NEB’s most recent fiasco, where they effectively declared themselves in a conflict of interest due to the appointment of a Kinder Morgan lobbyist, we will redouble our efforts and we will ensure the next federal government creates a new and fair process for the evaluation of all pipeline proposals,” said Sven Biggs, campaign organizer for ForestEthics Advocacy in Vancouver.
Burnaby blasts back
The City of Burnaby joined the fray last week, calling for Kelly’s complete removal and the formation of a new NEB panel “in order to cure what the Board has referred to as “concerns about the integrity of this hearing process”,” in a letter submitted as evidence on Sept. 4.
The letter stated that the removal of his evidence to the NEB regarding Kinder Morgan was not enough, claiming that it tainted the entire hearing and violated public integrity, further warning that any perception of bias could lead to interveners refusing to take part and a continued lack of public support.
“Burnaby is deeply concerned with this panel and the review process for the project. Burnaby has alerted this panel, on numerous occasions, as to panel actions and decisions that reflect a concern for the needs and preference of the proponent [Kinder Morgan],” states the letter. “This panel has consistently rejected Burnaby’s, and other interveners’ attempts, to ensure the review process is fair and considers whether this Project is in the interests of the broader Canadian public, as opposed to the interest of the proponent and the oil industry.”
Rigging the game
According to Biggs, situations like this were enabled by Harper government reforms to the NEB Act, which were included as part of omnibus budget bill C-45 in 2012.
His feelings are backed by numbers: since 2006, half the NEB’s 12 members are oil and gas experts, all of whom were appointed by the Harper government, leading critics to decry it as a “pipeline approval machine.”
At the same time, the NEB Act in its current form permits the public to partake in hearings only as ‘interveners’, who must attend all hearings, assist lawyers, and present evidence at forums, an often-laborious task.
Alternatively, people may be granted ‘commentator status’ allowing them to submit letters of concern like the City of Burnaby did.
Any person, organization, or business wishing to partake in hearings must also prove that they are ‘directly affected’ by the approval or denial of any given project, such as property owners near a pipeline’s proposed route, or show that they have ‘relevant information or expertise’, such as engineers.
Biggs maintained that the conditions on public participation were too restrictive, requiring applicants to undergo an 11-step process to prove that an energy project directly affected them, while restricting involvement in hearings to either full intervener status or passive commenters, with no other levels in between.
One person who felt she had relevant experience was Dr. Lynne Quarmby, federal Green Party candidate for Burnaby North-Seymour, but she said that the Supreme Court turned down her request to appear as an intervener.
“As a scientist, I am very concerned about climate change. I wanted to make submissions to the NEB that Canada needs to lead the transition to a post carbon economy.” said Quarmby.
A Supreme Court of Canada case summary stated that Quarmby did not apply for either intervener or commentator status at all.
Quarmby herself confirmed this, saying that she started to apply for intervener status, but decided not to bother when she realized that her information on climate change and greenhouse gas emissions would not be accepted as part of the NEB's hearings.
"I saw I was going to be rejected," said Quarmby.
In total, 2,118 persons applied to participate in the Kinder Morgan hearings. 1198 requests to participate were granted, including 452 requests for intervener status. The other 468 applications were denied by the NEB. Of the others who partook in the court challenge, one of the applicants was granted intervener status, three were granted commenter status, and seven were denied participation.
“After the next election we’ll be putting a lot of pressure on the next government to reform the process and potentially look at whether or not the NEB is really the right body to make these decisions,” said Biggs. “It will be hard for communities like Burnaby to ever accept decisions from them at this point.”
Pipeline of hope
Despite their recent Supreme Court Setback, Biggs and his fellow plaintiffs remain hopeful that a new government will overhaul pipeline regulations, saying that the NDP, Liberals, and Greens all include such reforms as part of their platforms.
Trudeau’s Liberals have pledged greater consultation with First Nations groups alongside increased analysis of potential greenhouse gas emissions before going ahead with any energy project.
NDP leader Thomas Mulcair is also pledging a revamped pipeline review process, including consultations First Nations, energy industry, and provincial stakeholders before any pipeline project wins approval.
“Resource development can only be successful if it grows our economy and protects our environment. An NDP government will take practical steps to do just that. To succeed, New Democrats will overhaul and strengthen Canada’s environmental assessment regime. We will make it open, fair and transparent. We will ensure social and environmental sustainability helps drive the success of resource projects. An NDP government will ensure that reviews are meaningful and account for a project’s impact on our climate,” said Mulcair in a May 2015 address.
Long march
This increasingly bitter dispute has its origins in Kinder Morgan's proposal to triple the bitumen-carrying capacity of the Trans Mountain Pipeline by building a second line linking Edmonton to the port in Burnaby. This would allow the company to increase tanker shipments out of Burrard Inlet from just five per month to 34, should the NEB approve its project.
http://www.vancouverobserver.com/sites/vancouverobserver.com/files/resize/images/article/body/1428225905-tmep-system-map-canada-oct-01-2014-850x655.jpg
However protests against the project rapidly mounted in Burnaby last year, followed by the court challenge against the NEB in spring 2015, when a group of landowners, business people, and academics first filed the constitutional challenge at the Supreme Court. The legal fightback was launched after the board banned the 468 Burnaby-area applicants.
The plaintiffs were backed by high-profile interveners including the Sierra Club of Canada, the Council of Canadians, NDP MP Kennedy Stewart and Green Party Leader Elizabeth May, who all filed supporting affidavits.
A panel of three Supreme Court justices made up of Chief Justice Beverley McLachlin, together with Justices Richard Wagner, and Clément Gascon reviewed the application before it was dismissed.
“I commend these brave and principled citizens for bringing the challenge, which has contributed to the now majority consensus that the existing NEB process is fatally flawed and needs to be completely revamped before its recommendations can enjoy the confidence of the public,” said Vancouver lawyer David Martin.
Original Article
Source: vancouverobserver.com/
Author: Fram Dinshaw
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